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Kneiss agt. Seligman.

were to be applied, and for the express purpose of accomplishing that object," and in the case of McKinnell vs. Robinson, Lord Abinger lays down the doctrine thus: “ This principle is that the repayment of money lent, for the express purpose of accomplishing an illegal object, can not be enforced.” This language used in both these cases " for the express purpose" is equivalent to saying that the motive and object of the lender in loaning the money was that it should be applied to the unlawful use. He being thus a participator in the unlawful act, would not of course be permitted upon the principle of any of the cases to recover. These cases, therefore, do not seem to me to go far enough to sustain the defence set up here.

The defendant's counsel has cited two cases from our own courts upon which he relies.

The first is that of Ruckman vs. Bryan (3 Denio, 340). The marginal note of that case is as follows: “ Money knowingly lent to be staked on the event of a horse race, can not be recovered back;” but on looking into the facts we find that the plaintiff himself made the bet of $3000, in which he allowed the defendant to take an interest of $600 and loaned the latter the money for his share.

The case clearly does not bear out the note, although the latter may be correct if the words “ to be staked” are understood to mean that the motive and object of the lender in making the loan was that it should be so staked. But upon the case itself, it should seem that there could be no doubt. The plaintiff was himself not only a participator but the principal in the illegal transaction; he loaned the money to be used in carrying out, not a contract to which he was not a party, like many of the cases, but his own personal contract. No recovery could be had in such a case without overruling all the authorities upon the subject.

The other case is that of Morgan vs. Goff (5 Denio, 364). The money here was not loaned to be used by the defendant upon his own account, but was sent to the defendant to be by him used in betting upon the election for the plaintif. As in the last case, therefore, the plaintiff was himself the principal in the illegal

Kneiss agt. Seligman.

design. The contract between him and the defendant was, that the latter should take the money and appropriate it for the benefit of the plaintiff to a purpose prohibited by law. The express contract therefore between the parties, was clearly tainted with turpitude, and had the suit been brought to enforce that contract the case would have been too clear for argument. The action, however was founded upon an implied undertaking to return money which the defendant had actually received belonging to the plaintiff. But the court held in substance that the law would not raise by implication a contract to refund the money under the circumstances. This case, although in some respects peculiar and new, has no direct bearing upon the question involved here. I see nothing, therefore, in either of the cases decided in our own courts which can aid us in coming to a correct conclusion in this. It was said upon the argument that the Supreme Court of Vermont had lately passed upon the question, and held as contended for by the defendant here. As I have not been able to lay my hand upon that authority I can say nothing in regard to it. There may have been something in that case to distinguish it from the one before us.

My conclusion from this review of the cases is, that there is no case which has been brought to my notice with the exception of that of Langton vs. Hughes, which goes the length necessary to sustain this defence; and that case comes in direct conflict, not only with the case of Holman v. Johnson, but with the spirit of many other cases, and ought not to be followed.

The doctrine established by the authorities to which I have referred, and others upon the subject, I hold to be this: That where a party who sells goods or advances money to another with knowledge of a design on the part of the latter to put the goods cr money to an unlawful use, does any act whatever beyond the bare sale, &c. in aid or furtherance of the unlawful object, he can not recover; or if the illegal use to be made of the goods or money enters into the contract, and forms the motive or incucement in the mind of the vendor or lender to the sale or loan, then he can not recover. The latter proposition may, however,

Collins agt. The Albany and Schenectady Railroad Company.

require to be qualified by the addition provided the goods or money are actually used to carry out the contemplated design, as no case has arisen in which this distinction has been insisted upon, although it was, perhaps, involved and virtually decided in the case of McKinnell vs. Robinson (3 Mees. and Wels. 434,) before cited.

But I think it is not established, and will never become the settled law, that bare knowledge on the part of a vendor that the vendee intends to put the goods to an illegal use, which intention may or may not be followed up, will vitiate the sale and deprive the party of all remedy for the purchase money. Such a doctrine would be repugnant to all the reasoning upon which the principles of our criminal code in regard to the punishment of principals and accessories in crime are foun led, reasoning which is equally applicable to penalties of the kind insisted upon here. It would be to punish a party as accessory to a wrong when no wrong may have been committed.

The doctrine relied upon by the defendant does not reach this case, because here the illegal design does not enter into or form any part of the plaintiff's contract, nor has he done any thing to aid in its accomplishment.

Judgment for the plaintiff upon the demurrer, with leave to the defendant to amend within twenty days upon payment of costs.

SUPREME COURT.

COLLINS agt. THE ALBANY AND SCHENECTADY RAIL ROAD COMPANY. An appeal will not lie in the first instance to the general term upon a case con

taining questions of fact alone. Applications for a new trial must first be made at the special term. (See Leggett ngt. Mott, 4 How. Pr. R. 325; Lusk agt. Lusk, id. 418; Graham agt. Milliman, id. 435.)

Allany General Term, May 1851. HARRIS, Watson and PARKER, Justices. This was an action brought to recover damages for an injury sustained by the plaintiff while a passenger in the defendant's cars. It was tried before Mr. Justice Parker, at the Albany circuit in March 1850. The jury rendered a verdict in

Collins agt. The Albany and Schenectady Railroad Company.

favor of the plaintiff for $11,000; from the judgment rendered upon this verdict the defendants appeal. The facts in the case sufficiently appear in the opinion of the court.

J. A. SPENCER, for Plaintiff.

M. T. REYNOLDS, for Defendants. By the Court, Harris, Justice.— This appeal is founded upon the alleged error of the jury in deciding a question of fact properly submitted to them. No error of law is complained of, either in the decisions upon the trial or in the charge to the jury. Indeed, there is not a single exception in the case. The defendants ask for a new trial solely upon the ground that the verdict is against evidence. Can an appeal be maintained in such a case? I think not. The Code provides that an appeal “upon the law" may be taken to the general term, but there is no provision authorizing an appeal where the decision is against evidence, or where the damages are excessive. What should be the mode of relief in such cases is, it must be admitted, not very clear. In fact the Code contains no express directions on the subject. The practice in this respect is left, almost entirely, to implication. But the question has recently received the deliberate attention of several judges, and especially of Mr. Justice GRIDLEY, who, in a well considered opinion, has come to the conclusion that an application for a new trial on the ground that the verdict is against evidence, can only be made at a special term (Lusk vs. Lusk, 4 Howard, 418. See also Leggett vs. Mott, 4 Howard, 325; Graham vs. Milliman, id. 435; Hastings vs. McKinley, 3 Code Rep. 10; Crist vs. New York Dry Dock Co. id. 118). I think it may now be considered as settled that where a party seeks to be relieved from an error of fact, as distinguished from an error of law, he must, in the first instance, apply at a special term. It was intended to make the general term, strictly an appellate tribunal, and, upon questions of fact there has been no decision, which can be the subject of review, until the motion for a new trial has been made at a special term and decided. The decision upon such a motion, whether a new trial is granted or denied, is the proper subject of an appeal under the 349th section of the

Pomeroy and Leonard agt. Hindmarsh and White,

Code (see cases above cited). Without considering the case upon the merits, therefore, I think the appeal should be dismissed. But as this branch of the practice has, until very recently, been wholly unsettled, the dismissal should be without costs, and without prejudice to the right of the defendants to apply for a new trial at a special term.

SUPREME COURT. POMEROY AND LEONARD agt. HINDMARSH AND White. A mere refusal to pay a debt, whether the debtor be solvent or not, is not cause

for issuing an injunction under $ 219 of the Code. Nor is it sufficient that the defendant threatens to make an assignment for the

benefit of his creditors. To obtain an injunction, facts should be shown. Suspicion, belief and information are not sufficient.

Clinton Special Term, Feb. 1850. G.M. BECKWITH moved to dissolve an injunction granted by a local officer, residing in the county of St. Lawrence, restraining the defendants “ from making an assignment, transfer, or other disposition of goods, effects, choses in action, or other evidences of debt to them belonging, for any purpose, until the final perfection of judgment in this action or until the further order of this court; and in case of disobedience to this order the said defendants, H. & W., will be liable to the punishment therefor prescribed by law.” The affidavit of the plaintiffs' attorney, upon which the injunction was granted, did not state whether a suit had been commenced; but stated the amount due to plaintiffs on two promissory notes and that he believed the defendants were “about to make an assignment of their property and effects to some person to this deponent unknown, for the purpose, among others, of impairing the rights of the said Pomeroy and Leonard, and thereby rendering the judgment ineffectual for the collection of the demand against the said Hindmarsh and White; and this deponent further says that he forms this belief in the premises upon the declarations of the said White made to him, this deponent, on the 17th day of January A. D. 1850, which declarations of the said White were that

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